What is Burglary in Virginia?

Unlike larceny and robbery, the common law crime of burglary in Virginia was considered a crime against the security of one’s home or place of habitation. Common law burglary has been codified in Va. Code § 18.2-89. The surrounding code sections describe different permutations of common law burglary. The wording of these statutes can be confusing and difficult to decipher, but they are explained below.

Penalties
for different forms of burglary can vary widely depending on the
circumstances. One constant, however, is
that a person who commits a burglary while armed with a deadly weapon at the
time of entry is guilty of a Class 2 felony, which carries a penalty of
imprisonment of not less than 20 years and up to life, and a fine of up to
$100,000.

Common Law Burglary in Virginia

The crime of burglary requires the following elements: (1) breaking and entering, (2) the dwelling house of another, (3) in the nighttime, (4) with the intent to commit a felony or any larceny therein. Va. Code § 18.2-89. A Burglary conviction under § 18.2-89 is a Class 3 felony and carries a penalty of imprisonment of not less than 5 years and not more than 20 years, and a fine of up to $100,000. If the person was armed with a deadly weapon at the time of entry, it becomes a Class 2 felony, which carries a penalty of imprisonment of not less than 20 years and up to life, and a fine of up to $100,000.

How is Burglary punished?

If a person commits these acts with the intent to commit assault and battery, he or she is guilty of statutory burglary punishable by confinement from one to twenty years, or, in the discretion of a judge or jury, of up to twelve months in jail and a fine of up to $2,500. Va. Code § 18.2-191.

What is considered a “dwelling”?

The Burglary statutes do not specifically define “dwelling house.” Another statute within Chapter 5 of Title 18.2 states that a structure that is not “adjoining a dwelling house, nor under the same roof” as a dwelling house is not part of the dwelling house, “unless some person usually lodges therein at night.” Va. Code § 18.2-78. Courts have concluded that there must be some regular habitation in the house to be considered a dwelling house. If there is any doubt, a detailed fact-based inquiry will be required.

Generally,
a person cannot commit burglary in a house he or she lawfully occupies, even if
the house is jointly occupied or owned with others.

Note
that when it comes to burglary, it does not matter whether or not others are
physically present in the house at the time of the burglary.

What is considered “nighttime”?

There
is little case law around the “nighttime” element, suggesting this element is
not typically disputed. The Virginia
Supreme Court did conclude in one case that where there was evidence the
defendant broke and entered possibly as early as 6:00 a.m. and that sunrise on
the following morning was at 7:08 a.m., a jury could find the defendant entered
the dwelling during the nighttime. Ryan v. Commonwealth, 219 Va. 439, 446,
247 S.E.2d 698, 703 (1978).

What is considered “breaking”?

“Breaking”
in this context does not need to involve a forceful breaking in the way that
you may naturally think of the term. It
requires only “the application of some force, slight though it may be, whereby
the entrance is [achieved].” Beck v. Commonwealth, 66 Va. App. 259,
269, 784 S.E.2d 310, 315 (2016). Such
slight force has included, pushing an already-open door further open, and turning
a key to unlock a door into a place the person does not have permission to
be.

A
“breaking” can also occur constructively, such as by fraud or threat.

What is “entering”?

The
act of “entering” carries an even lesser standard than breaking. In Virginia, any intrusion into an interior space can constitute an
entering. What qualifies for entering is
important because in Virginia one can be convicted of form of statutory burglary
without committing a “breaking.”

In
addition, the crime of burglary is complete once entry is made. A person need not actually commit or attempt
to commit any other unlawful act after entry.

What if I didn’t intend to break and enter?

Intent
to commit another crime is a crucial element of burglary and is the core
difference between burglary and the much lesser crime of trespass. It is necessary for the prosecution to prove
that the defendant had the bad intent at the time of entry. Such intent can be, and typically is, inferred
from a person’s words and actions and the surrounding circumstances.

A
number of Virginia cases have supported the conclusion that an “unexplained
unauthorized entry permits and inference or presumption that the person had the
requisite unlawful intent.”

What is considered a “deadly weapon”?

A
person who commits burglary and is armed with a deadly weapon at the time of
entering, will face conviction of a Class 2 felony, which carries a penalty of
imprisonment of not less than 20 years and up to life, and a fine of up to
$100,000.

“Deadly
weapon” is not defined by statute.
Courts have stated that a deadly weapon “is an instrument designed and
constructed to inflict death or great bodily harm and used in that manner.”
More than the intrinsic character of a weapon, it is the manner in which a weapon
is used that is the critical factor in determining whether it is “deadly.” Justiss
v. Commonwealth, 61 Va. App. 261, 734 S.E.2d 699 (2012).

What is Statutory Burglary in Virginia?

In
Virginia there are multiple Statutory burglary crimes, which basically broaden
common law burglary by loosening the elements of time of day, breaking, and the
type of structure entered. For example,
statutory burglary can be committed during the day or at night without a
breaking, and in structures other than a traditional dwelling.

Under Va. Code § 18.2-90, any person who in the nighttime enters without breaking or at any time breaks and enters or enters and hides in a dwelling house or store, or any boat or railroad car, or any car, truck or trailer that is used as a place to live, with the intent to commit murder, rape, robbery or arson is guilty of a Class 3 felony. A Class 3 felony carries a penalty of imprisonment of not less than 5 years and not more than 20 years, and a fine of up to $100,000.

If
the person was armed with a deadly weapon at the time of entry, it becomes a
Class 2 felony, which carries a penalty of imprisonment of not less than 20
years and up to life, and a fine of up to $100,000.

Section § 18.2-91 provides that if a person commits an act described in § 18.2-90, but with the intent to commit larceny or a felony that is not murder, rape, robbery, or arson, or if a person commits an act described in § 18.2-89 or § 18.2-90 with the intent to commit assault and battery he or she is guilty of statutory burglary punishable by confinement from 1 to 20 years, or, in the discretion of a judge or jury, up to 12 months and a fine of up to $2,500.

If
the person was armed with a deadly weapon at the time of entry, it is a Class 2
felony, which carries a penalty of imprisonment of not less than 20 years and
up to life, and a fine of up to $100,000.

Unlike the previous statutes, § 18.2-92 addresses a burglary by both breaking and entering into a dwelling house, when the person has the intent to commit a misdemeanor (other than assault and battery or trespass). Like other statutory burglary crimes, under this statute the breaking and entering can occur during the day time.

A
conviction under this section is a Class 6 felony, which carries a penalty of
imprisonment of not less than 1 year or more than 5 years, or, in the
discretion of the judge or jury, confinement of not more than 12 months and a
fine of up to $2,500.

If
the person was armed with a deadly weapon at the time of entry, it is a Class 2
felony, which carries a penalty of imprisonment of not less than 20 years and
up to life, and a fine of up to $100,000.

Burglary
of a Bank, Va. Code § 18.2-93

Section § 18.2-93 makes it a Class 2 felony to enter (no breaking required) a bank during the day or nighttime, armed with a deadly weapon and with the intent to commit larceny.

A
Class 2 felony carries a penalty of imprisonment of not less than 20 years and
up to life, and a fine of up to $100,000.

Possession
of Burglarious Tools, Va. Code § 18.2-94

Even without any breaking or entering of any structure, a person can be guilty of a crime if he or she has possession of any tools, implements, or outfit, with the intent to commit burglary, robbery, or larceny. Notably, mere possession of such burglarious tools by a person who is not a licensed dealer is prima facie evidence of that person’s intent to commit a burglary, robbery, or larceny. Va. Code § 18.2-94.

A
conviction of this crime is a Class 5 felony, which is punishable by 1-10 years’
imprisonment, or, in the discretion of the judge or jury, confinement of not
more than 12 months and a fine of up to $2,500.

Should you get an Attorney?

Burglary
can be a complicated crime. The
prosecution must prove multiple elements, all beyond a reasonable doubt, in
order to convict. Whether any one of these
elements can be proven requires a detailed factual inquiry and analysis. An attorney can help you identify critical
facts that can be used to try to disprove one or more of these elements.

If
you or a family member or friend are charged with burglary, contact the law
office today for a consultation.